Articles Tagged with Personal Injury

The United States Supreme Court heard arguments yesterday in a case which may have a major impact on lawsuits against medical device makers brought by patients who have been injured by defective products. The Supreme Court will be asked to consider whether patients can bring lawsuits over defective devices which have been cleared for sale by the Food and Drug Administrations’ approval process. In this case, a federal appeals court barred a suit which claims a New York man suffered permanent injury when a Medtronic heart catheter burst during a heart procedure.

The decision of the lower court would undercut thousands of lawsuits, including cases over defibrilators made by Medtronic and Boston Scientific Corp. Guidant unit. The ruling may also shield Medtronic from suits over its recalled Fidelis defibrilator wires. In 1996, a divided Supreme Court allowed lawsuits over products approved through a separate Food and Drug Administration approval process that provided for fast-track reviews of devices. The case before the Supreme Court concerns a pre-market approval process which is a more intensive FDA review.

The Bush administration is not surprisingly backing the medical device makers in their argument that the federal pre-market system should preclude claims that companies ought to have done more to ensure safety.

On November 21, 2007, the Supreme Court of Georgia issued an important opinion in Dees, et al. v. Logan, involving uninsured motorist coverage in the state of Georgia. The question presented to the Supreme Court was whether a damage award to an insured can be offset by workers’ compensation or similar benefits paid to the insured. The Court answered with a resounding “No”.

Dees and his wife brought suit against a defendant seeking damages for injuries suffered in an automobile collision. The jury awarded the Dees $130,000 for lost wages, $4,939 for reimbursement of COBRA payments, $10,000 for pain and suffering and $5,000 for loss of consortium. The Dees uninsured motorist carrier, State Farm, argued that it could offset the jury’s award by the amounts Dees had already received in workers’ compensation benefits, social security disability benefits and a pretrial settlement with the defendant’s liability insurer. The State Farm argument was based upon policy language that “any amount payable shall be reduced by any amount paid or payable to or for the insured: (a) Under any workers’ compensation, disability benefits or similar law”.

The trial court accepted State Farm’s argument and ordered that the Dees recover nothing from State Farm under their uninsured motorist policy. The Court of Appeals upheld the trial court.

In the case of Green Tree Financial Corp. v. Bazzle, 123 S.Ct. 2402, (2003) the U.S. Supreme Court opened the doors to class action arbitrations. The Court held that if an arbitration clause is silent regarding class actions, it’s up to the arbitrator (applying state law) to decide whether class arbitration will proceed.

Banks, credit companies and employers which traditionally have favored mandatory arbitration clauses, have been adding waivers to arbitration contracts specifically exempting class actions from arbitration. Consumer lawyers have responded by challenging the waivers in both state and federal court.

Historically, consumer rights lawyers have opposed clauses in consumer and employment contracts that mandate arbitration to resolve disputes, claiming that the binding nature of arbitration violates plaintiffs’ due process rights. But given the choice between no class action and class action arbitration, consumer attorneys obviously favor the clauses.

It was reported today that a Rhode Island hospital has been fined $50,000 by the Rhode Island Department of Health and reprimanded after a doctor performed brain surgery on the wrong side of the patient’s head.

According to reports, this was the third time this year at the particular hospital that a doctor performed brain surgery on the wrong side of the patient’s head.

The most recent case happened last Friday when the Chief Resident began surgery on the wrong side of an 82 year-old patient’s brain. Fortunately, the patient is reported to be doing okay after the surgery. In February of this year, a different doctor performed neurosurgery on the wrong side of another patient’s head. That patient was reported to be doing okay as well.

Last Friday, the Food and Drug Administration (FDA) issued a safety review of Tamiflu, manufactured by Roche, and Relenza, manufactured by Glaxo Smith Kline. Both of these drugs are designed to mitigate the effects of the flu. The review addresses the potential dangerous effect these drugs can have on children.
The FDA began reviewing Tamiflu in 2005 after it received reports of children experiencing neurological problems, including hallucinations and convulsions. Twenty five patients under the age of 21, most of them in Japan, have died after taking the drug. Five of these deaths resulted from children becoming involved in accidents after taking the drug. There have been no reports of child deaths connected with Relenza, but there have been reports of children taking the drug showing similar neurological problems to those involved with Tamiflu.
The FDA has recommended adding language about the possible side effects to labeling for physicians who prescribe Tamiflu and Relenza. Additionally, an outside group of pediatric experts is scheduled to begin a review of the safety of these drugs when used for children.

Late last week, Baja Motor Sports of Phoenix in conjunction with the Consumer Product Safety Commission issued a recall for 16,000 all terrain vehicles marketed for children as young as 12. The Baja 90, Baja Wilderness 90 and Baja Wilderness 90U four-wheel ATVs were recalled because they are missing a tire pressure gauge and a flagpole mounting bracket. Although neither the CPSC nor the company reported any injuries, they did consider the lack of the items to be a potential danger. These particular vehicles were sold on line and at retail outlets such as Pep Boys between November 2004 and July of this year.

In May, another Chinese-made ATV was recalled because it lacked a stop-engine switch and other safety features.

Competitors have raised safety concerns about Chinese-made ATVs. Established ATV manufacturers contend that the cheaper imported ATVs, which are making up a growing share of the U.S. market, are less likely to meet voluntary safety standards adopted by the domestic industry. As a result, the larger ATV manufacturers are lobbying Congress to make the current voluntary safety standards mandatory.

This week, California’s Attorney General filed a lawsuit against 20 companies implicated in the various lead-tainted toy recalls of 2007. Among the companies named in the lawsuit are Mattel, Fisher-Price, Toys R Us, Wal-Mart, Target, Sears, K B Toys, Costco Wholesale, Eveready Battery Company, K-Mart, and Marvel Entertainment.

The lawsuit alleges that the companies violated the California Safe Drinking Water and Toxic Enforcement Act of 1986 since they failed to notify customers of toys in the marketplace that contained high concentrations of lead. Although the federal government doesn’t require such labeling, California does.

The lawsuit contends that the companies knowingly exposed individuals to lead and did not provide warnings about the risk. Lead is known to cause cancer and reproductive harm, as well as other effects, such as learning disabilities in children. The lawsuit seeks to force manufacturers and retailers to adopt procedures for inspecting products to make sure they are safe. There is a statutory penalty of up to $2,500 for each item sold officials said.

Our serious injury lawyers are frequently litigating car collision cases in which the driver causing the serious injury was using a cell phone while operating the vehicle.

Research has consistently shown that operating an automobile while talking on a cell phone, either hand-held or hands-free, increases the risk of an accident by three to four times that normally experienced by attentive drivers. The general consensus of the scientific community is that there is little, if any, difference in crash rates involving hands-free versus hand-held cell phones. The very fact that one is engaged in a two-way conversation on a cellular phone, not the fact that one is holding the phone, is what causes a cognitive distraction which leads to the increased rates of collisions. Scientists have named this condition “inattention blindness”. This condition inhibits drivers’ abilities to detect changes in road conditions while they are carrying on a two-way conversation.

Several states and several communities have worked in a variety of ways to reduce dangers caused by this driver distraction. The highest standard prohibits use of any hand-held cellular phone but permits drivers to use hand-free devices. The District of Columbia, Connecticut, New Jersey and New York have adopted this standard. Eight states have banned school bus drivers from talking on any type of cellular device.

Many of you have already read press reports about the recall of over 4 million children’s craft kits because they contain beads coated with a chemical that turns into a dangerous drug if ingested. We have previously blogged about problems with Chinese manufactured toys and the Consumer Product Safety Commission.

In light of the massive recalls of these extremely dangerous toys, one has to wonder why these toys reached the shelves of stores in the first place. Many consumer advocates are now contending that these toys would not have entered the stream of commerce if toy makers had been required to have them tested at independent labs before they were imported into the United States.

The United States Congress is now considering legislation which would require manufacturers to pay for independent tests by certified labs prior to these toys being imported into the United States. Had these tests been required, the massive number of toys containing toxic amounts of lead would not have made it into the United States.

When a client is so seriously injured that they may not be able to work again at the same job and will likely incur future medical costs, it may be prudent for the client to consider a structured settlement as opposed to a lump sum cash settlement if one is offered. Our attorneys have handled many serious injury cases where a structured settlement has truly been in the best interests of our client. This is particularly so in the context of cases where the client lacks financial sophistication and may need future medical assistance and may incur future lost wages.

Of course, the main hallmark of a structured settlement is a long term annuity which provides cash payment benefits usually over time, sometimes over the life of the client. Structured settlements can be set up in a variety of ways to provide for the client’s future financial needs. These annuity/structured payments can be paid monthly, annually, semi-annually and basically on any time schedule desired. The focus, of course, is to provide long term financial assistance for the client who may need it. If the client does not need long term financial assistance, then a structured settlement may not ever come into play. However, for those who are seriously injured, it is likely that they will need long term financial assistance. Because of the tax benefits of a structured settlement (the interest on the amount of the annuity purchased is not taxable to the client over the course of the annuity payments) in many cases it is advisable for the client to consider a structured settlement.

There are a lot of advertisements on television these days about how clients who have received structured settlements can “cash in” and receive their monies now. Obviously, these companies that offer to buy structured settlements do so at a steep discount thus essentially taking much of the client’s needed money away from them. Because some clients are poor money managers they often times they resort to these companies in order “to cash in” on their structured settlements and get a quick term cash infusion. This results in a huge loss to the client.